Please can someone point me in the right direction to ascertain when the following clause in a will would be considered spent …
SUBJECT as above the gift is given with the proviso that my said son shall be given first refusal to purchase the Property before it is sold on the open market
The son is delaying making any offer when the remainder of the estate is now ready to be administered and distributed.
Many thanks.
Ideally a clause dependent on an event occurring or a person doing something will not as here be open-ended.
A right of first refusal should cater for the grantee’s failure to respond either at all or within a specified timescale, as well as other matters such as the manner of communicating exercise and the consequences of his doing so for grantor and grantee, the price or the mechanism for arriving at it and failure to agree e.g. referral to a valuer and manner of appointment. Options entail the same drafting strategy. Sound precedents are readily available and failure to draft sensibly by a professional is prima facie negligent.
Case law in general contract tomes like Chitty and specialist land law/conveyancing works or services like Practical Law should be consulted for illustrations of the pitfalls and their avoidance.
Where the exercise period is not specified the law falls back on the yardstick of a reasonable period in the actual context. This is as long as a piece of string and each judge has one of a different length. Relevant factors will be the nature and condition of the target asset, state of the market, anny offers or valuations already received, delay acceptable to obtain financing, application of Standard Conditions of Sale etc.
In your case I would send the son a notice requesting him to reply within a reasonable period signifying exercise or refusal in one or more eminently suitable ways, suggesting an open market value and method and timescale for resolving any disagreement, with similar methodology for proceeding to contract in the event of agreement, and stating key contractual terms if not supplying an illustrative draft.
The object is to enable both parties to reach a binding sale agreement or not in good time for the property to be sold elsewhere without significant disadvantage.
Timings to be fair may need to reflect whether the property is tenanted or otherwise occupied, perhaps by the son himself, and whether he expected to have to make a decision or has just found out, and is in a position to decide and then act if need be (query if he is on a long holiday touring SE Asia).
Jack Harper